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Strike-out unavailable where discovery eventually made

The recent case of Campion v Wat(1) has confirmed that an application to dismiss a claim for failure to make discovery will not succeed where the discovery obligation is complied with, notwithstanding the other party's reservations about the discovery actually made. Once deficiencies in making the discovery were resolved, the court found no basis to deprive the plaintiff of an opportunity to present its case. The case is a useful reminder that in making applications to strike out proceedings, the courts are slow to deprive litigants of a trial, and that curing a default in taking a particular step in the proceedings will normally satisfy the court.

Background

The case involved a dispute between a divorced couple regarding the ownership of rare stamps and associated certificates, as well as a security deposit cheque. With regard to the substance of the dispute, the defendant denied that:

the plaintiff was ever the owner;

the defendant was ever in possession of the disputed items; and

their return had been demanded.

The defendant also raised preliminary objections, including that:

the claim was statute barred;

the prosecution of the litigation had been subject to inordinate and excusable delay; and

no cause of action in certain respects had been made out on the pleadings.

Unsurprisingly, given the contention involved in the dispute, discovery was pursued.

The defendant had misgivings about the discovery originally made by the plaintiff and brought the application to dismiss the proceedings arising from the plaintiff's failings in that regard. At or about the hearing of the motion, a second supplemental affidavit of discovery was produced on behalf of the plaintiff. The plaintiff conceded that there were deficiencies in the previous affidavits sworn. However, it was contended that those deficiencies were unintentional and whatever deficiencies there were had since been rectified. Accordingly, the plaintiff contended that it would be unjust and unreasonable to be deprived of the opportunity to present his case. The defendant contended that the position could not be remedied, and that the latest affidavit was insufficient to excuse the plaintiff from the consequence of his previous recalcitrance.

Decision

At the outset, the court noted that the Rules of the Superior Courts Order 31, Rule 12 required the party to make an affidavit detailing documents that are or were in its possession or power relating to any matter in question in the case. Further, the court observed that the jurisdiction to strike out a claim or a defence for failure to make discovery exists for the purpose of enforcing and ensuring compliance with the court's order, to the effect that the discovery sought is necessary for the fair disposal of the action.

However, the court stated that once the discovery has been made, it is not generally the function of the court to make determinations of fact in order to decide whether the claim should be struck out. The court should not do so on affidavit evidence alone, but at a hearing at which the plaintiff is cross-examined. The court identified that the Supreme Court authority of Murphy v J Donohue Limited(2) supports this approach and referred to the headnote to the effect:

"[T]hat O. 31, r. 21 of the Rules of the Superior Courts, 1986, existed to ensure compliance with orders for discovery rather than to punish those who default; and that while cases might exist where a defence should be struck out because one party might not be able to get a fair trial as a result of the other parties wilful refusal to comply with an order for discovery, such cases would be extreme."

Bearing this in mind, the court felt that since the plaintiff had now made the discovery in the appropriate form, it was not open to it to determine on the basis of probability or improbability whether the plaintiff's explanations were correct. It was also felt that the court was not in a position to contrast the pleadings delivered against the contents of the discovery affidavits to establish the position. Ultimately, the court felt that it was inappropriate to direct the dismissal of the plaintiff's case; nor would it be just to do so. In this regard, it pointed out that the defendant had not identified to the court any special or particular prejudice that arose out of the late filing of the second supplemental affidavit of discovery in proper form. However, although the court recognised that it was "clearly reasonable and prudent and appropriate for the defendant to bring this motion", whether the affidavit ultimately delivered on the same was properly open to criticism was a matter best considered in the context of the trial as a whole in light of the evidence. Accordingly, the motion was dismissed.

Comment

Although not necessarily new authority, the decision restated the general position of the courts that it is in extreme cases only that pleadings will be struck out arising from the delayed or sequential making of discovery. Typically, where a party takes steps, even belatedly, to set out its discovery in the appropriate form, the courts will not preclude that party from either prosecuting or defending a claim. While there are exceptions to such an approach, and extreme cases may warrant striking out, the facts were such that the court was satisfied to let the matter proceed to hearing. Therefore, if faced with a party which is recalcitrant in making discovery, a litigant should be aware that if strike-out of that party's pleaded case is sought, the delivery of a discovery affidavit in advance of the hearing is likely to mean the motion will fail.